Louis Michael Seidman on Constitutional Skepticism and Disobedience

Lucas and I have had many interesting conversations since our first interview one year ago. This is an edited transcript from our discussion with Louis Michael Seidman (Mike), recorded in January. We discuss the importance of grounding our social and political values in something beyond the current Constitution, the pros and cons of a written constitution, and the significance of “demystifying the institution that sees itself as embodying constitutional law — the Supreme Court of the United States.”

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Luke: How did you become critical of the Constitution?

Mike: The beginning of it was before I began teaching. I spent a couple of years as a law clerk, first for a federal court of appeals judge and then on the Supreme Court. And then after that, I spent three years trying criminal cases, street crime for the DC Public Defender Service. And when you do that, you see law being made close and firsthand, both on the appellate level and on the everyday trial level. And anybody who sees that close up and who is honest about things can't help but be cynical about the standard story of American law and particularly American constitutional law. So much of it is decided by whim, by arrogance, and based on personal bias and political ideology. So much of the power is uncontrolled and unchecked, and nobody knows anything about it. It's all behind the scenes.

I've spent many years teaching and a long time studying Supreme Court doctrine, and you can't come away from that without seeing the ideological bias on both sides and how all of these decisions are not grounded in anything that the American people have agreed to, nor are they grounded in the original constitutional text. And even if they were, it is bizarre that this hundreds-of-years-old document should be guiding major public policy decisions now.

L: Why did you write “The Secret History of American Constitutional Skepticism”?

M: The standard story is that we have a hallowed tradition of constitutional obedience and reverence that has held the country together. But there hasn’t been enough attention paid to an alternative story about American history, about deep skepticism around the bindingness of the Constitution and outright constitutional disobedience. The most powerful example is Abraham Lincoln and his repeated disobedience of constitutional requirements. He spent unappropriated money at the beginning of the Civil War. And of course, he signed the Emancipation Proclamation. What's striking is that Lincoln was on record saying that he lacked the constitutional power to do it. Thomas Jefferson wrote extensively about constitutional disobedience and defended it. Franklin Roosevelt was prepared to violate the Constitution when necessary. There is a long history of such disobedience, and the history is important because it provides the kind of base for an alternative story and an alternative future that we might embrace if we only chose to do so.

L: You write, “Outward devotion to the rhetoric and rituals of constitutionalism with inner doubt and despair is bound to be untenable.” Where do you think things stand now regarding popular constitutional skepticism?

M: We're at an inflection point. We're not going back to where we were before.

The impulse that many opponents of Trump have is to shore up the foundations and insist on following the Constitution. And we have these extraordinary examples, just in the last week, of the president defying

constitutional language, like the birthright citizenship clause. So that impulse is understandable. But in the end, it's a mistake.

The causes of Trumpism are complicated, and there is more than one. But one big cause is that American people are tired of elites telling them what they can and can't believe and what they can and can't do. And part of that is constitutional law. The Supreme Court, law professors, and judges pretend that their views about things have some special status, that they're grounded in what all Americans have somehow agreed to, that they're unchangeable and fundamental. People are tired of hearing that.

The way to control Trumpism is through a mobilized citizenry that is convinced that what he's doing is wrong. So, for example, what we need to say to the American people is not that birthright citizenship is

embedded in the Constitution, and what people decided 150 years ago about it in a fundamentally different environment is something they just have to accept, whether they like it or not. What we need to convince people is that birthright citizenship is important to us as a nation because the right to have rights is something that, on its merits, we should protect.

To be a constitutional skeptic is not to believe that everything in the Constitution is bad or wrong. There are good things in the Constitution, and I happen to believe birthright citizenship is one of them.

It's just that the reason there ought to be birthright citizenship is not because it's in the Constitution. It's because it's a good thing. And the good things that are in the Constitution, we ought to do because they're good things.

Everything is up in the air. The possibilities for a change in our legal consciousness are higher now than they've been for many years.

L: Are the arguments for why we should retain constitutional faith still as strong as they were a decade ago?

M: First of all, we are engaged in constitutional disobedience right now. There are clear provisions in the Constitution that are regularly ignored. For example, the text is very clear that, except for the

A first set of senators, anyone elected to the Senate has a term of six years. But ever since Vermont was added as the 14th state, we've just disregarded that. So in some new states, one senator serves for four years, another senator serves for six. That's just what we've done.

The Constitution is very clear that constitutional amendments are among the things that have to be presented to the president for his veto. But we never do that. And last time I looked, there wasn't rioting on the streets. There wasn't complete chaos because those provisions were disregarded. It's just not true that you pull one string and the whole sweater collapses. Why? What actually holds the country together and prevents chaos, anarchy, and totalitarianism is not a document that is safely under glass in the National Archives. Documents don't command armies; they don't do things. What holds the country together is a combination of a set of traditions and a kind of unthinking assumptions, a minimal level of prosperity and concern for other people, and the fear of anarchy if we upset the apple cart completely.

Are those things going to continue to hold the country together? I think there are a fair number of questions about that. As I said before, things were up in the air, and I could imagine in a not-too-distant future, everything becoming unraveled. The Constitution is not going to prevent that from happening. Why? As a negative example, it didn't stop the Civil War; it didn't keep the country together. What kept it together was a bloody battle that killed 700,000 people. And as I mentioned before, Lincoln preserved the Union by disobeying the Constitution.

As a positive example, there are some pretty prominent countries that are operating reasonably successfully without an integrated constitution like the United States or a powerful court like the Supreme Court. Think about the United Kingdom.. There's no constitutional requirement in the sense of a written document that requires parliament to dissolve every five years and to hold regular elections, but it's not like the country comes apart at the seams every time that the five years are up. And again, last time I looked, the UK — God knows the country has problems — isn’t an autocracy or a totalitarian system. There aren't people rioting on the streets. There's no Hobbesian chaos happening.

L: In From Parchment to Dust: The Case for Constitutional Skepticism, you put forward various reasons why one should be a constitutional skeptic. What’s the utility of framing the conversation more around constitutional skepticism?

M: I'm not against all constitutions everywhere and under every circumstance. What I'm writing about is the American Constitution as it functions in 2025. When a country's political system first comes into existence,

I think that constitutions may well be important, and the American Constitution may well have been important. You need something to get things off the ground, and the Constitution served that purpose. Writing a new constitution under some circumstances can be an act of national unity. For example, the South African constitution. It can be a way of starting over again, of reinforcing a commitment by a people to have a certain kind of country.

What's bad is a centuries-old constitution that’s virtually unamendable. To have a constitution like that that governs us today seems nuts. It's very hard to defend. Americans 200 years ago had a different set of problems and were responding to different circumstances. They did not share many of our values. And most importantly, they're all dead. It's not their country. It's our country. And it's our country to decide what we want to do with it.

Now, is it time to start over with a new constitution? I don’t think so. Not now. That would be a big mistake. One reason is that in our present environment, if we try to put down in writing the things that unite us, the things we're for and against, I think that would push us over the edge, and we would come apart at the seams. The analogy I sometimes think of is that some perfectly happy marriages go on for years.. But what makes them happy is that the couple doesn't sit down and sort everything out. They just live their lives, and a lot is left undecided or swept under the table. As a country, we're not in a position to hash stuff like that out.

Also, the impulse behind a new constitution is the same impulse that got us in trouble with the old constitution.

We shouldn't think of ourselves as writing for the ages. It's hard enough to solve our own problems right now without trying to figure things out for people who aren't alive yet and who are going to be dealing with different problems. The impulse toward constitution writing is an impulse toward settlement and a kind of finally resolving things.

I think what keeps polities together is just the opposite. Everything is always on the table, and there are no permanent losers. People can always reverse defeats. Constitutions stop that, and therefore get in the way of the kind of unity we need. The argument for leaving things unsettled is that the losers know they've lost for now, but that if they try hard enough and convince enough people, organize, vote, and persuade, they might be the winners in the future.

L: Can the Supreme Court’s unpopularity be used to discredit the Constitution as a whole?

M: There is a question about whether we ought to obey the Constitution. And there is a separate question about whether we ought to have a politically insulated, irresponsible Supreme Court making important public policy decisions. One could favor one and not the other. But they're connected in the following sense.

The way the Supreme Court gets away with exercising the extraordinary power that it does over American society is by claiming that it's not just its opinion. The Court isn’t just doing whatever it wants. Instead, it is obeying this canonical law.

Not so. The justices, contrary to the mythology they try to promote (and by the way, this includes all nine of them), are not following anything close to the original understanding of the text or even how it might be understood today. They're mostly doing whatever they want. They operate largely outside the control of the American people. They are appointed for life. Their salaries can't be reduced. They don't run for election. They don't hold press conferences. It's a kind of oligarchy, and people shouldn't accept it. We have a right to govern ourselves, and the Supreme Court is standing in the way.

L: Where do you think constitutional skepticism stands in the academy today?

M: I believe there is more skepticism today than there was, say, 10 or 15 years ago. That is partly a result of how poorly the Supreme Court is currently functioning. There are now ideas on the table that weren’t there 10 or 15 years ago. But look, I am in this for the long haul, and I don't think things will change quickly. They definitely won’t change in the next four years, so we need to think long term. Smaller actions can happen gradually, and these can both weaken the respect for the Constitution and diminish the authority of the court. We need to be strategic and seize opportunities when they arise.